Northwestern Journal of International Human Rights Volume 7 | Issue 1 Article 2 Spring 2009 Two Narratives of Torture John Ip Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/njihr Recommended Citation John Ip, Two Narratives of Torture, 7 Nw. J. Int'l Hum. Rts. 35 (2009). http://scholarlycommons.law.northwestern.edu/njihr/vol7/iss1/2 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Human Rights by an authorized administrator of Northwestern University School of Law Scholarly Commons. Copyright 2009 by Northwestern University School of Law Volume 7, Issue 1 (Spring 2009) Northwestern Journal of International Human Rights Two Narratives of Torture John Ip* INTRODUCTION ¶1 Upon taking office in January 2009, one of President Obama’s first official acts was to issue an executive order requiring that all persons detained by the United States be treated humanely, and that the Central Intelligence Agency (CIA) close all of its detention facilities.1 Together with another executive order directing the closure of the detention facility at Guantánamo Bay,2 this order marks the beginning of the end of a controversial chapter of American counterterrorism policy. ¶2 At this time, the beginning of a new presidency, it is instructive to look back at the period just past, a period in which torture and coercion were openly sanctioned as tools of interrogation at the highest levels of the Bush administration.3 This article is about the normalization of interrogational torture and coercion from 2001 to 2008. In particular, the discussion focuses on a key device in the normalization process: the ticking bomb scenario. Long a philosophy professor’s staple, the ticking bomb scenario post-9/11 received renewed attention from legal academics, who have invoked it in questioning the status of the absolute legal prohibition on torture. Versions of the ticking bomb scenario have also appeared in Bush administration documents and official statements that asserted the legality of torture and various coercive interrogation techniques. Additionally, the scenario has been replicated in the media and popular culture, the most notable example being Fox’s high-rating television show, 24. Together, these various manifestations of the ticking bomb scenario constitute the first narrative or account of torture. ¶3 However, this narrative has been contested by a second account of torture that challenges the logic of the ticking bomb scenario. Academic commentators have highlighted the assumptions underlying the scenario that render it a suspect guide to policy. Certain government actors, most notably the Federal Bureau of Investigation (FBI) and military lawyers, consistently rejected its logic, and opposed the use of torture and coercion in interrogation. This second account also has a popular culture * Faculty of Law, University of Auckland, New Zealand. My thanks to An Hertogen and Kevin Jon Heller, for their comments on earlier drafts. Any errors remain my own. 1 Exec. Order No. 13,491, Ensuring Lawful Interrogations, 74 Fed. Reg. 4893 (Jan. 27, 2009), available at http://edocket.access.gpo.gov/2009/pdf/E9-1885.pdf. 2 Exec. Order No. 13,492, Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities, 74 Fed. Reg. 4897 (Jan. 27, 2009), available at http://edocket.access.gpo.gov/2009/pdf/E9-1893.pdf. See also Scott Shane, Mark Mazzetti & Helene Cooper, Obama Reverses Key Bush Policy, but Questions on Detainees Remain, N.Y. TIMES, Jan. 23, 2009, at A16, available at http://www.nytimes.com/2009/01/23/us/politics/23obama.html?_r=1. 3 This typically involved an official admission that a particular coercive interrogation technique had been used, while at the same time denying that the use of that technique amounted to torture. This pattern of admission and denial is illustrated by the Bush administration’s defense of waterboarding. See infra text accompanying notes 84-85. NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS [2009 representative in the form of Sci-Fi Channel’s Battlestar Galactica. Thus, the same battles that have been fought over the treatment of detainees in the “war on terror” in the legal and political arenas by real world actors in the years since 9/11 have also been fought at a discursive level in popular culture. ¶4 The article begins in Part I by laying out the law in relation to torture. The law in this area is clear: torture and various other forms of mistreatment are illegal. However, soon after 9/11, there were calls to loosen the reins and allow counterterrorist agencies greater flexibility. Parts II and III discuss the two narratives of torture identified above, and particularly their appearances in academic literature, official discourse, and popular culture. If the previous two parts consider how art has imitated life, Part IV deals with how life has imitated art. The popular culture representatives of each narrative, 24 and Battlestar Galactica, are reflections of post-9/11 American society. At the same time, both shows have the potential to shape and influence the debate about torture in the United States. 24, in particular, being representative of the dominant or hegemonic narrative of torture during the period under consideration, has already done this in several different ways. I. THE NEW NORMAL ¶5 The prohibition on torture features prominently in international law. It is widely accepted as a peremptory norm of international law (jus cogens).4 The right to be free from torture can also be found in numerous human rights treaties. The International Covenant on Civil and Political Rights, for example, states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”5 The Covenant permits derogation from certain rights during exceptional situations of emergency, but the right to be free from torture is not one of these rights.6 The Convention against Torture (CAT) further clarifies this point in unequivocal terms: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”7 The CAT, in addition to prohibiting torture,8 also obliges states to take measures to prevent acts, which, although falling short of the threshold for torture, nevertheless amount to “cruel, inhuman or degrading treatment or punishment.”9 ¶6 The law of armed conflict protects against torture and coercion as well. The prohibition on torture here can be found as far back as the Lieber Code of 1863.10 It also 4 See A v. Sec’y of State for the Home Dep’t (No. 2) [2005] UKHL 71, [2006] 2 A.C. 221, paras. 33-34. 5 International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR], available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm. 6 Id. art. 4. 7 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]. 8 CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Id. art. 1. 9 Id. art. 16. 10 See Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 36 Vol. 7:1] John Ip finds expression in the more recent Geneva Conventions. For example, article 17 of the Third Geneva Convention states, “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever.”11 It further states that prisoners of war who refuse to answer questions “may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”12 Article 31 of the Fourth Geneva Convention provides that “[n]o physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.”13 Both the Third and Fourth Geneva Conventions explicitly state that torture is a grave breach of the Conventions.14 Additionally, common article 3 of the Geneva Conventions, which appears in all four Conventions, protects against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”15 Finally, Article 75 of Additional Protocol I to the Geneva Conventions, which applies as a backstop to detainees who are not entitled to more favorable treatment under the Conventions or the Protocol, prohibits “torture of all kinds, whether physical or mental.”16 ¶7 In terms of domestic law, the prohibition on the infliction of torture has long been considered a touchstone of the common law.17 Torture is plainly prohibited under American law as well. The general criminal law would apply to acts amounting to torture committed inside the United States.18 Further, the Torture Statute, enacted by Congress in order to implement obligations under CAT, criminalizes acts of torture committed outside the United States.19 Moreover, prior to changes wrought by the Military Commissions (Apr.